Ken Klukowski: Six Arguments I'd Make If I Were Defending KSM

This column originally appeared on the Fox Forum website on November 17, 2009.

If I were asked to defend 9/11 terror suspect Khalid Sheik Mohammed here's what I'd tell him.

Attorney General Eric Holder announced on Nov. 13 that the Obama administration would be transferring handpicked terrorists to New York City for a civilian trial, giving them every constitutional right enjoyed by Americans. This creates a legal nightmare, endangering our national security and jeopardizing our war effort. And President Obama may end up as a political casualty, having abdicated his constitutional responsibility on this issue to his subordinate.

Within hours of Holder's announcement, his predecessor issued a sharp rebuke. Former U.S. Attorney General Michael Mukasey was already scheduled to deliver a speech at the Federalist Society's national convention. Taking the podium, Mukasey began by saying that his pre-written remarks were overtaken by the morning's events, and so he would be speaking extemporaneously about Holder's decision and its horrific ramifications for national security. He then launched into a compelling presentation on civilian law enforcement in the War on Terror and the ridiculousness of Team Obama's decision.

General Holder announced that five terrorists, including the mastermind of the 9/11 attacks, Khalid Sheikh Mohammend (KSM)--would be transferred from military custody at Gitmo to the U.S. District Court for the Southern District of New York. There they will receive a civilian trial, and enjoy every constitutional protection conferred by the Bill of Rights.

The implications for deciding to move five terror suspects into the civilian court system are staggering. So far, KSM and his terrorist minions have pleaded guilty and say they seek martyrdom (death). They may now realize that they can now do far greater harm to America and advance their jihad by entering pleas of "not guilty" and fighting this all the way to the bitter end.

If I were KSM's lawyer, I'd argue the following:

1. That his Fourth Amendment rights were violated by letters and conversations that the government intercepted without a search warrant.

2. That his Fifth Amendment rights against self-incrimination were violated if the government attempts to use statements made before he was read his Miranda rights or after he was waterboarded (since the Obama administration calls it torture).

3. That his Sixth Amendment rights were violated by not providing a speedy trial, that the Speedy Trial Act (a federal statute) has also been violated, and that he has been denied adequate legal counsel.

4. I would also say he cannot get a fair trial in New York and move for change of venue.

5. I would challenge the admissibility of any evidence that was unsecured even for an hour, challenge the authenticity of any offered evidence, insist on his Sixth Amendment right to confront every witness against him, including the capturing officers, interrogators, guards, transport personnel, and whoever else I can think of.

6. I would raise objections of circumstantial evidence, hearsay, the witnesses' integrity, and every other conceivable objection to the evidence and every procedural step.

If I were a lawyer for any of the terrorists that are being kept in the military system, I would now demand a civilian trial. I would object that the Justice Department is only giving federal trials to those the government believes it can convict, and keep the others in military tribunals. My objection would be that if they refuse to give my client a trial because he might be acquitted, then justice demands that he be given that chance. If due process requires a trial, then it violates due process to deny my client a trial. If they're only giving a trial to those they are confident they will convict, then this whole thing is a sham.

At every step, these trials could harm America. They can find out through court discovery America's methods for gathering intelligence and how we are tracking their movements. They might find out who's working undercover with us, what we've been told, who we're watching, and what we're positioning to do in the future.

In World War II, eight German saboteurs landed on an American shore on June 17, 1942, buried their uniforms, and attempted to blend into our society. They were captured. The man who now is an icon for the Democratic Party President Franklin Roosevelt, convened a secret--that's right, secret--military tribunal just two weeks later on July 2. The men were immediately convicted and sentenced to death. Two sentences were commuted because they had led U.S. agents to the other six. Those six were executed on August 8. In fact, FDR ordered them executed before the Supreme Court handed down a final opinion in their case, in Ex parte Quirin.

Looking at President Obama, the wartime president apple has clearly fallen far from the FDR tree.

Speaking of Barack Obama, last week amounts to an utter abdication of his duties as president. This was not a decision for the Justice Department. This involves the conduct of a war, and therefore involves the Defense Department. It endangers our intelligence methods and assets, and therefore involves the CIA and NSA. It has diplomatic implications, involving the State Department. It carries the risk of terrorist reprisals, therefore involving the Homeland Security Department. This decision must balance all of those factors, and should therefore only be made by the president of the United States.

And the politics here are puzzling. Maybe all these people will immediately plead guilty, forego any appeals, beg for the death penalty, and receive it. But if they choose to fight, the range of outcomes is limited. On one hand they may not be convicted by November 2012, and if they are convicted they'll still be in appeals at that point. Worse, one or more may have their cases dismissed on a procedural technicality or evidence issue, like those outlined above. None of these outcomes help President Obama.

If not found guilty for any reason, then they must be released. That's required by the writ of habeas corpus for those given a civilian trial on U.S. soil -- which President Obama has told us he strongly supports.

These terrorists deserve capital punishment, not release onto American soil.

If a single one of these terrorists is released, that failure to see justice done will be an unforgivable insult to our military and to the families of those killed on 9/11. For their sake, we must all hope this plan works.

President Obama, in particular, had better hope this reckless and ill-advised plan works. If it doesn't, the voters of this country may show him that decisions have consequences on Nov. 6, 2012.

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